United States v. Daniel Brown

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-30191

Plaintiff-Appellee,

D.C. No.

v. 2:16-cr-00056-

JCC-1

DANIEL DEREK BROWN,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Western District of Washington

Carolyn R. Dimmick, District Judge, Presiding

Argued and Submitted November 6, 2018

Seattle, Washington

Filed June 5, 2019

Before: M. Margaret McKeown and Michelle T. Friedland,

Circuit Judges, and Fernando J. Gaitan, Jr., * District Judge.

Opinion by Judge McKeown;

Concurrence by Judge Friedland

*

The Honorable Fernando J. Gaitan, Jr., United States District Judge

for the Western District of Missouri, sitting by designation.

2 UNITED STATES V. BROWN

SUMMARY **

Criminal Law

The panel reversed the district court’s order denying a

motion to suppress evidence obtained after police officers

stopped Daniel Brown following an anonymous tip that a

black man was carrying a gun, which is not a criminal

offense in Washington State.

The panel held that the officers lacked reasonable

suspicion that criminal activity was afoot before stopping

and frisking Brown. The panel wrote that the totality of the

circumstances does not add up to enough: no reliable tip, no

reasonable inference of criminal behavior, no police

initiative to investigate a particular crime in an identified

high crime area, and flight without any previous attempt to

talk to the suspect. The panel was particularly hesitant to

allow flight to carry the day in authorizing the stop, given

that racial dynamics in our society—along with a simple

desire not to interact with police—offer an “innocent”

explanation of flight, when every other fact posited by the

government weighs so weakly in support of reasonable

suspicion.

Concurring, Judge Friedland wrote separately to

elaborate on three points: (1) the presumptive legality of

carrying a concealed firearm in Washington makes this case

distinguishable from Foster v. City of Indio, 908 F.3d 1204

(9th Cir. 2018); (2) to help explain why the result here is

different from that in Illinois v. Wardlow, 528 U.S. 119

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

UNITED STATES V. BROWN 3

(2000), it is helpful to think of justification for a Terry stop

as a calculus in which the factors raising suspicion must,

after aggregating their relative weights, add up to reasonable

suspicion; and (3) nothing in the record supports the

conclusion that the officers were stopping Brown simply

because he was black.

COUNSEL

Jason B. Saunders (argued), Law Offices of Gordon &

Saunders PLLC, Seattle, Washington, for Defendant-

Appellant.

Charlene Koski (argued), Assistant United States Attorney;

Annette L. Hayes, United States Attorney; United States

Attorney's Office, Seattle, Washington; for Plaintiff-

Appellee.

4 UNITED STATES V. BROWN

OPINION

McKEOWN, Circuit Judge:

David Derek Brown, who is a black man, had the

misfortune of deciding to avoid contact with the police.

Following an anonymous tip that a black man was carrying

a gun—which is not a criminal offense in Washington

State—police spotted Brown, who was on foot, activated

their lights, and pursued him by car, going the wrong

direction down a one-way street. Before flashing their

lights, the officers did not order or otherwise signal Brown

to stop. Brown reacted by running for about a block before

the officers stopped him at gunpoint.

With no reliable tip, no reported criminal activity, no

threat of harm, no suggestion that the area was known for

high crime or narcotics, no command to stop, and no

requirement to even speak with the police, we are left with

little more than Brown’s flight from the officers, which is

not enough under the circumstances. In today’s world,

Justice Stevens’ observations some twenty years ago are

particularly prescient:

Among some citizens, particularly minorities

and those residing in high crime areas, there

is also the possibility that the fleeing person

is entirely innocent, but, with or without

justification, believes that contact with the

police can itself be dangerous, apart from any

criminal activity associated with the officer’s

sudden presence.

Illinois v. Wardlow, 528 U.S. 119, 132 (2000) (Stevens, J.,

concurring in part and dissenting in part). Without more

specific, articulable facts supporting their actions, we

UNITED STATES V. BROWN 5

conclude that the officers lacked the requisite reasonable

suspicion that criminal activity was afoot before stopping

Brown. Accordingly, we reverse the district court’s order

denying Brown’s motion to suppress.

BACKGROUND

This case began with a 911 call reporting that an

unidentified resident at the YWCA claimed “they saw

someone with a gun.” On January 11, 2016, around

7:20 p.m., Sandra Katowitz—an employee at the YWCA in

the Belltown neighborhood of Seattle—called 911, which

dispatched the information to the Seattle Police Department

(“Seattle Police”). Katowitz stated that “[o]ne of [her]

residents just came in and said they saw someone with a

gun.” Katowitz never saw the gun herself. Through

Katowitz, the resident described the man as a young, black

man of medium build with dreadlocks, a camouflage jacket,

and red shoes. The 911 dispatcher asked Katowitz specific

questions about what Brown was doing with the gun.

Katowitz answered that all her resident said was that “he has

a gun.”

Katowitz did not indicate that the resident yelled or

shouted, was visibly upset by seeing the gun, or was

otherwise alarmed by the gun’s presence. Also, there was

no indication that the man was loitering at the residence, was

known at the YWCA, was harassing or threatening any

residents there, or had done anything other than be seen by

the resident. The resident remained in the lobby while

Katowitz called 911, but on the call the resident can only be

heard stating that she did not want to provide a firsthand

report because she “[does not] like the police.” The resident

did not speak to the 911 dispatcher or the officers who

responded to the call, nor did she provide her name.

6 UNITED STATES V. BROWN

While Seattle Police officers were speaking to Katowitz,

two King County Sheriff’s Office Metro Transit Unit

(“Metro”) officers heard and responded to the 911 call. 1

From his patrol car, Metro officer Ryan Mikulcik spotted

Brown, who was on foot and matched the 911 description.

Mikulcik called his partner, Curt Litsjo. Then Mikulcik

began the pursuit, driving behind Brown slowly for several

blocks before turning on his patrol lights and driving the

wrong direction down a one-way street to follow Brown.

Seeing the lights and patrol car coming from behind him,

Brown ran. Mikulcik and Litsjo pursued Brown for one

block before stopping him and ordering him to the ground at

gunpoint. The officers placed Brown in handcuffs and found

a firearm in his waistband. A further search revealed drugs,

cash, and other items.

Brown moved to suppress the evidence from the

searches, arguing that the officers lacked reasonable

suspicion to stop him under Terry v. Ohio, 392 U.S. 1 (1968).

The district court disagreed and denied the motion. We

reverse.

ANALYSIS

Recognizing that an officer may only “conduct a brief,

investigatory stop when the officer has a reasonable,

articulable suspicion that criminal activity is afoot,”

Wardlow, 528 U.S. at 123, we must consider whether the

officers’ stop of Brown met this standard. In undertaking

1

After speaking to Katowitz, the Seattle Police officers who

responded to the call at the YWCA updated the dispatcher, saying that

“we have no victim of any crime.” The record is at best ambiguous as to

whether the Seattle Police officers updated dispatch that there was “no

victim of any crime” before Metro officers Mikulcik and Litsjo stopped

Brown at gunpoint.

UNITED STATES V. BROWN 7

this fact-driven analysis, we consider de novo “the totality of

the circumstances surrounding the stop, including ‘both the

content of information possessed by police and its degree of

reliability.’” United States v. Williams, 846 F.3d 303, 308

(9th Cir. 2016) (quoting Alabama v. White, 496 U.S. 325,

330 (1990)); see also United States v. Edwards, 761 F.3d

977, 981 (9th Cir. 2014).

Here, the lack of facts indicating criminal activity or a

known high crime area drives our conclusion. The Metro

officers who stopped Brown took an anonymous tip that a

young, black man “had a gun”—which is presumptively

lawful in Washington—and jumped to an unreasonable

conclusion that Brown’s later flight indicated criminal

activity. At best, the officers had nothing more than an

unsupported hunch of wrongdoing. The government’s effort

to rest reasonable suspicion on the tip and Brown’s flight

fails to satisfy the standard established by Terry and

Wardlow. The combination of almost no suspicion from the

tip and Brown’s flight does not equal reasonable suspicion.

The tip suffers from two key infirmities—an unknown,

anonymous tipster and the absence of any presumptively

unlawful activity.

It is well established that an anonymous tip that identifies

an individual but lacks “moderate indicia of reliability”

provides little support for a finding of reasonable suspicion.

See Florida v. J.L., 529 U.S. 266, 270–71 (2000). As the

Supreme Court has observed: “Unlike a tip from a known

informant whose reputation can be assessed and who can be

held responsible if her allegations turn out to be fabricated,

an anonymous tip alone seldom demonstrates the

informant’s basis of knowledge or veracity.” Id. at 270

(internal citations and quotation marks omitted).

8 UNITED STATES V. BROWN

Even though Katowitz identified herself, the actual

source of the tip—the resident—remained anonymous. Nor

did the tip provide any predictive information that might

have served as indicia of reliability. Compare White,

496 U.S. at 332 (“Because only a small number of people are

generally privy to an individual’s itinerary [and future

behaviors], it is reasonable for police to believe that a person

with access to such information is likely to also have access

to reliable information about that individual’s illegal

activities.”). The Supreme Court has found a virtually

identical anonymous tip insufficiently reliable to create

reasonable suspicion. J.L., 529 U.S. at 268, 270–72 (holding

an anonymous tip that a young black man in a plaid shirt was

carrying a gun insufficient to create reasonable suspicion).

The Court was clear in J.L. that “a tip [must] be reliable

in its assertion of illegality, not just in its tendency to identify

a determinate person.” Id. at 272. None of the officers who

responded to the 911 call articulated what crime they

suspected Brown of committing. They stated only that they

knew he had a firearm, testifying at the suppression hearing:

“I heard them dispatch a call to a subject with a gun . . . ,”

and “I heard a call of a subject with a gun at - - in the

Belltown area.” These statements are illustrative for what is

not said. Although an officer is not required to identify the

exact crime he suspects, he must articulate suspicion as to

some criminality, not simply “an ‘inchoate and

unparticularized suspicion or hunch’ of criminal activity.”

Wardlow, 528 U.S. at 123–24 (quoting Terry, 392 U.S.

at 27).

In Washington State, it is presumptively lawful to carry

a gun. It is true that carrying a concealed pistol without a

license is a misdemeanor offense in Washington. See RCW

§§ 9.41.050(1)(a) (“[A] person shall not carry a pistol

UNITED STATES V. BROWN 9

concealed on his or her person without a license to carry a

concealed pistol . . . .”), 9.41.810 (explaining that any

violation of the subchapter is a misdemeanor “except as

otherwise provided”). However, the failure to carry the

license is simply a civil infraction. Id. § 9.41.050(1)(b)

(“Every licensee shall have his or her concealed pistol

license in his or her immediate possession at all times . . . .

Any violation of this subsection . . . shall be a class 1 civil

infraction . . . .”). Notably, Washington is a “shall issue

state,” meaning that local law enforcement must issue a

concealed weapons license if the applicant meets certain

qualifications. Id. § 9.41.070(1).

The anonymous tip that Brown had a gun thus created at

most a very weak inference that he was unlawfully carrying

the gun without a license, and certainly not enough to alone

support a Terry stop. Cf. Delaware v. Prouse, 440 U.S. 648,

663 (1979) (holding that unless there is a particularized

suspicion that the driver is unlicensed, officers are prohibited

from stopping drivers solely to ensure compliance with

licensing and registration laws).

Faced with this reality, the government now argues that

the officers suspected that the manner in which Brown was

carrying his gun was unlawful: it is “unlawful for any person

to carry, exhibit, display, or draw any firearm . . . in a

manner, under circumstances, . . . that warrants alarm for the

safety of other persons.” RCW § 9.41.270. Never mind that

nothing in the record could support such a finding. No

evidence shows that the resident was alarmed at the time she

reported seeing the gun. There is no report that she yelled,

screamed, ran, was upset, or otherwise acted as though she

was distressed. Instead, the 911 call reported only that the

resident “walked in” and stated “that guy has a gun.” The

911 dispatcher followed up trying to learn more about how

10 UNITED STATES V. BROWN

Brown was displaying the gun, other than simply possessing

it. But Katowitz simply reiterated, “[u]h, she just came in

and said he has a gun.” Both of the officers that stopped

Brown testified they were responding to a call about a

“subject with a gun.” Considering the tipster’s anonymity

and the presumptive legality of carrying a concealed firearm

in Washington, the “tip” alone did not create reasonable

suspicion that Brown was engaged in any criminal activity.

The government also offers a post hoc rationale, namely

that the call coming from the YWCA—a women’s shelter—

was part of the whole picture considered by the officers.

Nothing in the record suggests that Brown was in the shelter,

loitering in front of the shelter, or harassing or threatening

anyone around the shelter. To the contrary, Brown was

walking away from the shelter at the time of the stop. While

we do not take lightly the possibility of violence at a

women’s shelter, such a threat was not part of the totality of

circumstances confronting the officers who ultimately

stopped Brown. In the end, the 911 call revealed nothing

more than an unreliable anonymous tip reporting

presumptively lawful behavior. That is not to say that the tip

has no weight, but under the totality of circumstances, it is

worth little. See United States v. Fernandez-Castillo,

324 F.3d 1114, 1117 n.3 (9th Cir. 2003).

We next consider Brown’s flight from the Metro

officers. No one disputes that once the Metro officer

activated his patrol car lights, Brown fled. But the Supreme

Court has never endorsed a per se rule that flight establishes

reasonable suspicion. Instead, the Court has treated flight as

just one factor in the reasonable suspicion analysis, if an

admittedly significant one. Wardlow, 528 U.S. at 124

(“Headlong flight—wherever it occurs—is the consummate

act of evasion: It is not necessarily indicative of wrongdoing,

UNITED STATES V. BROWN 11

but it is certainly suggestive of such.”). Nonetheless, the

Court has a long history of recognizing that innocent people

may reasonably flee from the police:

[I]t is a matter of common knowledge that

men who are entirely innocent do sometimes

fly from the scene of a crime through fear of

being apprehended as the guilty parties, or

from an unwillingness to appear as witnesses.

Nor is it true as an accepted axiom of criminal

law that ‘the wicked flee when no man

pursueth, but the righteous are as bold as a

lion.’ Innocent men sometimes hesitate to

confront a jury; not necessarily because they

fear that the jury will not protect them, but

because they do not wish their names to

appear in connection with criminal acts, are

humiliated at being obliged to incur the

popular odium of an arrest and trial, or

because they do not wish to be put to the

annoyance or expense of defending

themselves.

Alberty v. United States, 162 U.S. 499, 511 (1896).

Notably, the officers did not communicate with Brown,

use their speaker to talk with him, or tell him to stop before

they flashed their lights and then detained him. Under these

circumstances, Brown had no obligation to stop and speak to

an officer. See Florida v. Royer, 460 U.S. 491, 497–98

(1983) (holding that an individual has no obligation to

respond when police approach and ask questions).

The situation was far different in United States v. Smith,

where the officer activated his siren twice, pulled over, and

exited his vehicle before commanding Smith to stop.

12 UNITED STATES V. BROWN

633 F.3d 889, 891 (9th Cir. 2011). Smith, who was in a high

crime area, turned around and questioned whether the officer

was talking to him. Id. The officer clarified he was and

again commanded Smith to stop. Id. After a very pointed

back and forth with the officer, who made it clear that Smith

should stop, Smith suddenly broke out into a headlong run,

which the court found to be for “no other reason than to

evade.” Id. at 891, 894. As the officer approached, Smith

said that he had a handgun in his pocket. Id. at 891.

The circumstances here are also very distinguishable

from what law enforcement faced in Wardlow. There, the

officers specifically “converg[ed] on an area known for

heavy narcotics trafficking in order to investigate drug

transactions” and discovered the suspect holding an opaque

bag, who immediately ran after looking in the direction of

the officers. 528 U.S. at 121–22, 124. Assessing the

situation from the officers’ reasonable perspective, the

totality of the circumstances—the baggie, the high crime

area, and the known heavy narcotics trafficking in that

area—put Wardlow’s flight from the officers in an extremely

suspicious light. See id. at 124 (“It was in this context [of

the officers anticipating encountering various people

involved in drug crimes and seeing Wardlow holding an item

consistent with drug trafficking] that [the officer] decided to

investigate Wardlow after observing him flee.”). By

contrast, in the face of a weak tip, this case presents little

more than a black man walking down the street in Belltown,

which the government does not argue is a “high crime” area.

There is no evidence that Brown was in an area known for

unlawful gun possession, unlike the “heavy narcotics

trafficking area” in Wardlow, nor did the officers observe

Brown holding something or walking in a particular way that

would corroborate the information that he might be carrying

a gun. Brown did not refuse to speak with the officers after

UNITED STATES V. BROWN 13

a verbal request. Although Brown’s flight might be

suggestive of wrongdoing, it did not corroborate any reliable

suspicion of criminal behavior.

In evaluating flight as a basis for reasonable suspicion,

we cannot totally discount the issue of race. In explaining

his understanding of the limits of the Court’s opinion in

Wardlow, Justice Stevens recognized that flight can be a

problematic factor in the reasonable suspicion analysis

because some citizens may flee from police for their safety.

See Wardlow, 528 U.S. at 126–140 (Stevens, J., concurring

in part and dissenting in part). Several years before Justice

Stevens’ concurrence, our court addressed at length “the

burden of aggressive and intrusive police action [that] falls

disproportionately on African-American, and sometimes

Latino, males” and observed that “as a practical matter

neither society nor our enforcement of the laws is yet color-

blind.” Washington v. Lambert, 98 F.3d 1181, 1187–88 (9th

Cir. 1996). There is little doubt that uneven policing may

reasonably affect the reaction of certain individuals—

including those who are innocent—to law enforcement.

In the almost twenty years since Justice Stevens wrote

his concurrence in Wardlow, the coverage of racial

disparities in policing has increased, amplifying awareness

of these issues. This uptick in reporting is partly attributable

to the availability of information and data on police

practices. 2 Although such data cannot replace the

2

For example, relevant to this case, in 2011 the U.S. Department of

Justice investigated the Seattle Police Department and released a report

finding “a pattern or practice of using unnecessary or excessive force”

and “serious concerns” about racially discriminatory policing. U.S.

Dep’t of Justice, Investigation of the Seattle Police Department 3 (2011),

https://www.justice.gov/sites/default/files/crt/legacy/2011/12/16/spd_fi

ndletter_12-16-11.pdf. Since this report, the Department has been

14 UNITED STATES V. BROWN

“commonsense judgments and inferences about human

behavior” underlying the reasonable suspicion analysis,

Wardlow, 528 U.S. at 125, it can inform the inferences to be

drawn from an individual who decides to step away, run, or

flee from police without a clear reason to do otherwise. See

id. at 133 (“Moreover, these concerns and fears are known

to the police officers themselves, and are validated by law

enforcement investigations into their own practices.”

(footnote omitted)). Given that racial dynamics in our

society—along with a simple desire not to interact with

police—offer an “innocent” explanation of flight, when

every other fact posited by the government weighs so weakly

in support of reasonable suspicion, we are particularly

hesitant to allow flight to carry the day in authorizing a stop.

Even under Wardlow, flight itself—the “consummate act

of evasion”—is not tantamount to guilt. Although flight may

be suggestive of wrongdoing, the absence of other factors

here, when considered alongside a tip that is entitled to little

weight, underscores the lack of reasonable suspicion.

CONCLUSION

In the end, the totality of the circumstances here does not

add up to enough: no reliable tip, no reasonable inference of

criminal behavior, no police initiative to investigate a

particular crime in an identified high crime area, and flight

without any previous attempt to talk to the suspect. We

subject to a Consent Decree focused on eliminating the identified

constitutional violations. See United States v. City of Seattle, No. C12-

1282JLR, 2018 WL 6304761, at *1 (W.D. Wash. Dec. 3, 2018). Two

years after Brown’s arrest, in January 2018, a federal judge determined

the Seattle Police Department was fully compliant with phase one of the

Consent Decree, although review under the decree continues. See id.

at *1–2.

UNITED STATES V. BROWN 15

conclude that the Metro officers did not have reasonable

suspicion of criminal activity when they stopped and frisked

Brown. Accordingly, we REVERSE the district court’s

denial of the motion to suppress.

FRIEDLAND, Circuit Judge, concurring:

I agree that Metro officers Mikulcik and Litsjo did not

have a reasonable suspicion that Brown was engaged in a

crime when they stopped him, so I concur in the majority

opinion. I write separately to elaborate on a few points.

First, the presumptive legality of carrying a concealed

firearm in Washington makes this case distinguishable from

our recent decision in Foster v. City of Indio, 908 F.3d 1204,

1215–16 (9th Cir. 2018), in which we held that an officer

could have reasonably believed that an anonymous tip

alleging that an individual had a gun created reasonable

suspicion. There, even though the tip did not state that the

person was carrying the gun illegally or was about to commit

a crime, we held that a reasonable officer “could have

concluded that the tip . . . provided information on potential

illegal activity” because it is presumptively unlawful to carry

a concealed weapon without a permit in California, which

issues concealed carry permits to only 0.2 percent of its adult

population. Id. at 1215. In comparison, Washington is not

only a “shall issue state,” as the majority opinion

emphasizes; it is also a state in which almost ten percent of

citizens have concealed carry permits. See John R. Lott, Jr.,

Concealed Carry Permit Holders Across the United States:

2016, Crime Prevention Research Center, July 26, 2016, at

20. Especially following our holding in Foster, I believe that

statistic weighs in favor of concluding that there was no

reasonable suspicion to stop Brown.

16 UNITED STATES V. BROWN

Second, to help explain why the result here is different

from that in Illinois v. Wardlow, 528 U.S. 119 (2000), I

believe it is helpful to think of justification for a Terry stop

as a calculus in which the factors raising suspicion must,

after aggregating their relative weights, add up to reasonable

suspicion. Under this framing, the Supreme Court in

Wardlow may be interpreted as suggesting that flight affords

officers most of the reasonable suspicion needed to conduct

a Terry stop. In Wardlow, the suspect’s presence in the

narcotics trafficking area while holding an object consistent

with drug trafficking activity provided enough additional

suspicion that, taken together with the suspect’s flight, there

was reasonable suspicion to support a Terry stop. By

contrast, the tip here was so unreliable that it added less

suspicion to Brown’s flight than Wardlow’s presence and

actions in a drug trafficking area did to his. Without more

than this tip, even if Brown’s flight created a significant

amount of suspicion, the Metro officers lacked sufficient

suspicion overall to stop and frisk him.

In my view, however, the Metro officers may have been

able to stop Brown in a constitutional manner if they had

approached the situation differently. Because Washington

law requires an individual to “have his or her concealed

pistol license in his or her immediate possession at all times”

and punishes the failure to produce the license on request as

a civil infraction, Wash. Rev. Code § 9.41.050(1)(b), I

believe the Metro officers could have approached Brown to

ask him to show his concealed carry license. The officers

would not have “seized” Brown, and therefore would not

have required reasonable suspicion for the interaction, as

long as a reasonable person in Brown’s position would “feel

free ‘to disregard the police and go about his business.’” See

Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting

California v. Hodari D., 499 U.S. 621, 628 (1991)). And if

UNITED STATES V. BROWN 17

Brown had failed to produce the license, he would have

committed a civil infraction at minimum. See Wash. Rev.

Code § 9.41.050(1)(b). Washington law would then have

permitted the officers to ask Brown for his name and, if he

refused, to detain him “for a period of time not longer than

is reasonably necessary to identify the person for purposes

of issuing” the infraction. Id. § 7.80.060; see id. § 7.80.050,

see also State v. Duncan, 43 P.3d 513, 519–20 (Wash. 2002).

Depending on Brown’s responses and reactions, the officers

might even have obtained reasonable suspicion that Brown

did not have a license at all, which would have made his gun

possession a misdemeanor offense under § 9.41.050(1)(a).

Once they had such suspicion, the officers could have

conducted a full Terry stop and frisk.

We are not reviewing the constitutionality of such a

hypothetical stop here, however, because the Metro officers

did far more than approach Brown and ask him for his

concealed carry license. As soon as Brown ran, the officers

cornered him with guns drawn, handcuffed him, and frisked

him, transforming the stop immediately into a detention that

could have only been supported by reasonable suspicion

existing prior to the detention.

Third, to the extent the majority opinion, particularly its

reference to the Seattle Police Department’s current consent

decree with the U.S. Department of Justice, see majority

opinion, at 13 n.2, could be read as suggesting that race

explains why the Metro officers initiated the encounter in the

first place, I want to emphasize that this is not my

understanding.

Nothing in the record supports the conclusion that the

officers were stopping Brown simply because he was black.

In other words, I see no reason to believe the officers were

using the tip as some pretext to stop Brown and that this stop

18 UNITED STATES V. BROWN

therefore fits into a longer history of Seattle law enforcement

engaging in racially discriminatory policing. 1 The concern

that Brown had a gun, regardless of race, was something

worth investigating, even if the circumstances ultimately fell

shy of giving the officers reasonable suspicion.

Given the serious public safety threat that firearms

present, we should not discourage law enforcement from

investigating whether an individual carrying a gun in public

is legally allowed to do so. But law enforcement must do so

in accordance with the protections of the Fourth

Amendment. Because the Metro officers here did not have

reasonable suspicion when they conducted a Terry stop of

Brown, the stop cannot stand under the Fourth Amendment.

With these points of elaboration, I join the majority

opinion.

1

Race might help explain why Brown ran. As the majority opinion

notes, potentially “innocent” explanations of flight include fears based

on racial disparities in policing. But race is not the only innocent

explanation that can explain flight—fear of the police for any reason can.

And our consideration of these innocent explanations does not mean that

the level of suspicion caused by flight is necessarily reduced when the

individual fleeing is black. Here, it is the lack of additional facts

suggesting Brown’s flight was borne out of an effort to hide criminal

behavior, such as a reliable tip or police observations suggesting illicit

activity, and not Brown’s race, that drives our analysis.